The sense of shame of many illiterate people ... in this instance led a man to admit to a crime he said he didn't commit, rather than admit that he couldn't read.
Understanding the Law: A Judicial Imperative
Limited literacy impedes access to justice. When users of the justice system cannot understand and participate fully in its proceedings, and when courts fail to or are unable to recognize and address issues of limited literacy, justice is threatened.
Low literacy - and a lack of understanding about it - can affect both process and outcome in the courtroom. For example, it can:
- result in miscarriages of justice
- reduce court efficiency and effectiveness
- be a barrier to reducing crime and recidivism, and
- contribute to a culture of systemic discrimination based on ability to read and write.
Miscarriages of justice
If we don't start paying more attention to this problem, we will see increasing miscarriages of justice involving people who should not be found guilty, but have been because they can't articulate their position and the position they have articulated is not protected.
Michael Edelstein, defence lawyer
People may come into contact with the justice system because of confusion or inappropriate action caused by low literacy skills. Once there, limited literacy can further reduce access to justice. For example, people with low literacy skills:
- may avoid initiating legal action, even when it is warranted
- may not understand the proceedings against them or the conditions to which they have agreed for release
- are unlikely to contest procedures, and may plead guilty or confess because they don't understand or are intimidated by the adversarial system, or "just to get it over with"
- may not understand - and therefore not comply with - written appearance notices, requests for fingerprinting and photographing, bail undertakings, probation and parole orders, recognizances or undertakings with conditions, leading to compounded offences
- may not have the skills to find a lawyer or a Legal Aid office
- may find it difficult to represent themselves in court or properly instruct a lawyer
- may not be able to write their own statements or test the veracity of those statements when written by others
- may not understand pieces of written evidence, to the detriment of their credibility or testimony as witnesses and their judgment as jurors
- "may be handed a harsher sentence because they don't appear to be cooperative, which is often a sign of their lack of confidence." Because those with limited literacy are often ashamed by their troubles with reading and writing, they may not disclose their literacy problems, even when judges might consider those problems in verdicts and sentencing.
The failure to respond appropriately to low literacy skills can reduce court efficiency and effectiveness through unnecessary delays, efforts and costs - including, the John Howard Society points out, the cost of appeals related to accused's right to understand. For example, low literacy can reduce court efficiency and effectiveness when:
- an accused or witness fails to appear in court because he or she did not understand a summons or subpoena, or could not read the signs in the courthouse directing him or her to the correct room
- an accused cannot fill out the forms for Legal Aid, delaying court proceedings until he or she finds representation
- a legal action occurs as a direct result of limited literacy (e.g., an accused's failure to comply with the terms of a written contract that he or she did not understand), or
- an accused cannot understand - and therefore does not comply with - written orders.
Barriers to reducing crime and recidivism
Those with low literacy:
- are unlikely to make full use of the opportunities available to them, such as meeting with a Community Services Officer
- may be unable to benefit from anger management, drug rehabilitation, and life-skills programs recommended or required by judges at sentencing. These programs are generally text-based and require a literacy level that the offender doesn't have.
Systemic discrimination
"Systemic discrimination" means no more and no less than it is the "system" by which its nature, treats a category of people differently because they belong to that category.
Judge John Maher, in Understanding Literacy: A Judicial Imperative
The effects of limited literacy are apparent throughout the justice system, from the moment someone is charged by police, through the courtroom process, to sentencing and parole. At every stage, questions are asked, forms filled out, statements taken, documents read - often at a rapid pace in complex legal language.
Because the justice system is so heavily text-based, courts can be accused of systemic discrimination against those with low literacy skills: the everyday demands of the justice system, like those of society in general, require an ability to read and write, and it is largely taken for granted by many court personnel that those who appear in the court have that ability. |
